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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
) File No. EB-00-IHD-0079
The KBOO Foundation ) NAL/Acct. No.
200132080056
) Facility ID # 65755
Licensee of Noncommercial Educational )
Station KBOO-FM, Portland, OR )
MEMORANDUM OPINION AND ORDER
Adopted: February 20, 2003 Released: February
20, 2003
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Order, we rescind the Notice of Apparent
Liability (``NAL'') in this proceeding, which found that The
KBOO Foundation, licensee of noncommercial Station KBOO-FM,
Portland, Oregon, apparently violated 18 U.S.C. § 1464 and
section 73.3999 of the Commission's rules, 47 C.F.R. §
73.3999, by willfully broadcasting indecent language.1
Based on our review of The KBOO Foundation's response and
supplemental response to the NAL, we conclude that the
licensee did not violate the applicable statute or the
Commission's indecency rule, and that no sanction is
warranted.
II. BACKGROUND
2. The Commission received a complaint alleging that
KBOO-FM broadcast indecent material on October 20, 1999
between 7:00 p.m. and 9:00 p.m. during the ``Soundbox.''
The complainant submitted a tape containing allegedly
indecent material that aired on the ``Soundbox'' on that
date. After reviewing the complainant's tape, the staff of
the Enforcement Bureau issued a letter of inquiry to The
KBOO Foundation, the licensee of the station involved.
3. On May 17, 2001, after reviewing the licensee's
response to the letter of inquiry, the Enforcement Bureau
(``Bureau'') issued a Notice of Apparent Liability
(``NAL''), which found that ``Your Revolution,'' material
broadcast during the October 20, 1999 ``Soundbox'' program,
apparently violated the Commission's indecency rule. The
Bureau proposed a monetary sanction of the base forfeiture
amount of $7,000.
4. The KBOO Foundation challenges the NAL and argues
that a forfeiture should not be imposed.2 The KBOO
Foundation asserts that based upon the song's entire
context, ``Your Revolution'' is not actionably indecent and
that any other analysis is contrary to the free speech
protections afforded to broadcasters under the
Constitution's First Amendment. The KBOO Foundation asks
that the proposed monetary forfeiture be rescinded.
III. DISCUSSION
5. It is a violation of federal law to broadcast
obscene or indecent programming. Specifically, Title 18 of
the United States Code, Section 1464 (18 U.S.C. § 1464),
prohibits the utterance of ``any obscene, indecent or
profane language by means of radio communication.'' Congress
has given the Federal Communications Commission the
responsibility for administratively enforcing 18 U.S.C. §
1464. In doing so, the Commission may, among other things,
impose a monetary forfeiture, pursuant to Section 503(b)(1)
of the Communications Act (the ``Act''), 47 U.S.C. §
503(b)(1), for broadcast of indecent material in violation
of 18 U.S.C. § 1464. Federal courts have upheld Congress's
authority to regulate obscene speech and, to a limited
extent, indecent speech. Specifically, the U.S. Supreme
Court has determined that obscene speech is not entitled to
First Amendment protection. Accordingly, Congress may
prohibit the broadcast of obscene speech at any time.3 In
contrast, federal courts have held that indecent speech is
protected by the First Amendment.4 Nonetheless, the federal
courts consistently have upheld Congress's authority to
regulate the broadcast of indecent speech, as well as the
Commission's interpretation and implementation of the
statute.5 However, the First Amendment is a critical
constitutional limitation that demands we proceed cautiously
and with appropriate restraint.6 Consistent with a
subsequent statute and case law,7 under the Commission's
rules, no radio or television licensee shall broadcast
obscene material at any time, or broadcast indecent material
during the period 6 a.m. through 10 p.m. See 47 C.F.R. §
73.3999.
6. In enforcing its indecency rule, the Commission
has defined indecent speech as
language that first, in context, depicts or describes sexual
organs or activities. Second, the broadcast must be
``patently offensive as measured by contemporary community
standards for the broadcast medium.'' Infinity Broadcasting
Corporation of Pennsylvania, 2 FCC Rcd 2705 (1987)
(subsequent history omitted) (citing Pacifica Foundation, 56
FCC 2d 94, 98 (1975), aff'd sub nom. FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)). This definition has been
specifically upheld by the federal courts.8 The
Commission's authority to restrict the broadcast of indecent
material extends to times when there is a reasonable risk
that children may be in the audience. ACT I, supra. As
noted above, current law holds that such times begin at 6
a.m. and conclude at 10 p.m.9
7. The Commission's indecency enforcement is based on
complaints from the public. Once a complaint is before the
Commission, we evaluate the facts of the particular case and
apply the standards developed through Commission case law
and upheld by the courts. See Industry Guidance on the
Commission's Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency (``
Indecency Policy Statement'') 16 FCC Rcd 7999 at 8015, ¶ 24.
``Given the sensitive nature of these cases and the critical
role of context in an indecency determination, it is
important that the Commission be afforded as full a record
as possible to evaluate allegations of indecent
programming.'' Id. In evaluating the record to determine
whether the complained of material is patently offensive,
three factors are particularly relevant: (1) the
explicitness or graphic nature of the description; (2)
whether the material dwells on or repeats at length
descriptions of sexual or excretory organs or activities;
and (3) whether the material appears to pander or is used to
titillate or shock. See Indecency Policy Statement, supra,
16 FCC Rcd at 8003 ¶ 10.
8. Applying the definition of broadcast indecency,
we note first that it is undisputed that KBOO-FM aired
material that describes sexual activity. Thus, the NAL
correctly determined that the material the KBOO Foundation
aired during the ``Soundbox'' program was sexual in nature
and warranted scrutiny. However, based on our review of the
record developed in response to the NAL, we now conclude
that the material is not patently offensive and therefore
not indecent.
9. The NAL acknowledged that the contemporary social
commentary in ``Your Revolution'' is a relevant contextual
consideration,10 but nevertheless concluded that the
broadcast of the song was apparently indecent. While this
is a very close case, we now conclude that the broadcast was
not indecent because, on balance and in context, the sexual
descriptions in the song are not sufficiently graphic to
warrant sanction. For example, the most graphic phrase
(``six foot blow job machine'') was not repeated. Moreover,
we take cognizance of the fact presented in this record that
Ms. Jones has been asked to perform this song at high school
assemblies. While not controlling, we find that this is
evidence to be considered when assessing whether material is
patently offensive. In sum, we find that The KBOO
Foundation has demonstrated that the lyrics of ``Your
Revolution,'' measured by contemporary community standards,
are not patently offensive and therefore not indecent.
Accordingly, we rescind the NAL.
10. In light of our decision rescinding the NAL, we
dismiss as moot Sarah Jones's informal request filed October
2, 2002.
IV. ORDERING CLAUSES
11. In view of the foregoing, pursuant to
Sections 0.111(a)(7), 0.311 and 1.80(f)(3) of the
Commission's rules, 47 C.F.R. §§ 0.111(a)(7), 0.311 and
1.80(f)(3), IT IS ORDERED THAT the Bureau's May 17, 2001
Notice of Apparent Liability for Forfeiture issued to The
KBOO Foundation, licensee of noncommercial Station KBOO-FM,
is hereby RESCINDED.
12. IT IS FURTHER ORDERED That, the informal request,
filed pursuant to 47 C.F.R. § 1.41, by Sarah Jones on
October 2, 2002, IS HEREBY DISMISSED AS MOOT.
13. IT IS FURTHER ORDERED THAT a copy of this
MEMORANDUM OPINION AND ORDER And FORFEITURE ORDER shall be
sent by Certified Mail -- Return Receipt Requested to John
Crigler, Esq., Counsel for The KBOO Foundation, Garvey,
Schubert & Barer, 1000 Potomac Street, N.W., Fifth Floor,
Washington, DC 20007 and to The KBOO Foundation, 20 S.E.
8th Ave., Portland, Oregon, 97214.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 The KBOO Foundation, Notice of Apparent Liability, 16
FCC Rcd 10731 (EB 2001).
2 We note that The American Civil Liberties Union of
Oregon and the American Civil Liberties Union of the
National Capital Area (collectively, the ACLU) filed a
Memorandum in support of The KBOO Foundation's initial
response to the NAL. We treat this pleading as an amicus
curiae brief. The ACLU's Memorandum raises essentially the
same arguments presented in The KBOO Foundation's response.
The KBOO Foundation also filed a supplement to its response
to the NAL on February 6, 2002. In addition, on October 2,
2002, Sarah Jones, author of ``Your Revolution,''
submitted an informal request, pursuant to 47 C.F.R. § 1.41,
asking that the Commission rescind the NAL and issue a
declaratory ruling that ``Your Revolution'' is not
actionably indecent. We dismiss Ms. Jones's informal
request as moot in light of our action here.
3 See Sable Communications of California, Inc. v. FCC, 492
U.S. 115 (1989); Miller v. California, 413 U.S. 15 (1973),
rehearing denied, 414 U.S. 881 (1973).
4 Sable Communications of California, Inc. v. FCC, supra
note 3, 492 U.S. at 126.
5 FCC v. Pacifica Foundation, 438 U.S. 726 (1978). See
also Action for Children's Television v. FCC, 852 F.2d 1332,
1339 (D.C. Cir. 1988) (``ACT I''); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991),
cert denied, 112 S.Ct. 1282 (1992) (``ACT II''); Action for
Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995),
cert denied, 116 S.Ct. 701 (1996) (``ACT III'').
6 ACT I, supra note 5, 852 F.2d at 1344 (``Broadcast
material that is indecent but not obscene is protected by
the first amendment; the FCC may regulate such material only
with due respect for the high value our Constitution places
on freedom and choice in what people say and hear.''). See
also United States v. Playboy Entertainment Group, Inc., 529
U.S. 803, 813-15 (2000).
7 Public Telecommunications Act of 1992, Pub. L. No. 356,
102nd Cong., 2nd Sess. (1992); ACT III, supra note 5.
8 In FCC v. Pacifica Foundation, the Court quoted the
Commission's definition of indecency with apparent approval.
FCC v. Pacifica Foundation, supra note 5, 438 U.S. at 732.
In addition, the D.C. Circuit Court of Appeals upheld the
definition against constitutional challenges. ACT I, supra
note 5, 852 F.2d at 1339; ACT II, supra note 5, 932 F.2d at
1508; ACT III, supra note 5, 58 F.3d at 657.
9 ACT III, supra note 5.
10 See Infinity Broadcast Corporation of Pennsylvania, 3 FCC
Rcd 930, 932-33 (1987) (subsequent history omitted).